People v. Brown

32 A.D.3d 1222, 821 N.Y.S.2d 348

Opinion

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March 22, 2005. The judgment revoked defendant’s probation and imposed a term of incarceration.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking the term of probation imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [2]) and sentencing him to a term of incarceration. Defendant contends that the decision of the Supreme Court in Crawford v Washington (541 US 36 [2004]) precludes the use of a firearms report at his probation violation hearing. We reject that contention. Although the revocation of probation results in a loss of liberty, it is not a criminal prosecution (see generally Gagnon v Scarpelli, 411 US 778, 782 [1973]; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959 [1987]). Thus, Crawford, which “preserved defendant’s right to confront witnesses in the context of a criminal prosecution,” does not apply (People v Dort, 18 AD3d 23, 25 [2005], lv denied 4 NY3d 885 [2005]). In any event, any error in admitting the firearms report is harmless (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). The sentence is not unduly harsh or severe. Present — Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.